What is the Johnson Amendment?

What is the Johnson Amendment?

In his Republican convention acceptance speech, Donald Trump declared that, “An amendment, pushed by Lyndon Johnson, many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views. I am going to work very hard to repeal that language and protect free speech for all Americans.” So, what is this “Johnson amendment” and why is Mr. Trump so eager to repeal it?

In 1954, Lyndon Baines Johnson was the freshman senator from Texas seeking his first re-election to office. His election to the Senate in 1948, though successful, had been so close and controversial that it had remained an embarrassment for him. He had won by a total of only 87 votes—less than one hundredth of one percent of the total votes cast and this only after a mysterious “Box 13” had been produced from Duval County giving Johnson an extra 200 votes and his opponent only one. Johnson’s opponents screamed corruption and branded him with the insulting nickname “Landslide Lyndon.” It was a reputation that did not die. Decades later, William Buckley, Jr., would quip that his grandfather had possessed such a strong sense of “civic obligation” that though he died in 1904, he rose again to vote for Lyndon Johnson in 1948. Critics said that the elder Buckley was not the only dead man to vote for Johnson that year.

In 1954, Johnson’s opponent was the largely unknown, thirty year-old, first-term state representative from Beeville named Dudley Dougherty. Johnson did not see much of a challenge in Dougherty, whom he dubbed “the young man from Beeville.” But there was another player in the game and this one Johnson feared: McCarthyism.

By 1954, the fear of communism inspired by Senator Joseph McCarthy’s hearings and speeches had set the country on edge. As Johnson told friends in his usual earthy style, “Joe McCarthy’s just a loudmouthed drunk. Hell, he’s the sorriest senator up here. Can’t tie his goddamn shoes. But he’s riding high now, he’s got people scared to death some Communist will strangle ‘em in their sleep, and anybody who takes him on before the fevers cool—well, you don’t get in a pissin’ contest with a polecat.”[1]

Johnson soon found himself walking a tightrope. He despised McCarthy but had long known that many of the big oilmen from Texas loved “Tailgunner Joe” and his stridently conservative stand. Needing the huge amounts of money these men could pour into his campaign, Johnson tempered his public opposition to McCarthy to keep their support. This seemed to work with most of the Texas oilmen—except for one.

  1. L. Hunt was the brand of staunchly conservative, anti-communist that haunted Lyndon Johnson’s dreams. He was more than an oilman. He was also an activist who funded a conservative, tax-exempt organization called Facts Forum. Known for producing an astonishing array of radio shows, television programs, books and magazines, Facts Forum espoused an exceptionally hard anti-communist line. Johnson, whose approach to communism was more moderate, rightly suspected that Facts Forum was secretly supporting his opponent, Dougherty. But Facts Forum wasn’t alone. Frank Gannett, owner of one of the largest newspaper chains in the country, had founded a tax-exempt organization called Committee for Constitutional Government (CCG) which was wildly successful in blanketing the country with anti-communist material. In a seven-year period, CCG had distributed over 82 million pieces of literature, made over 100,000 radio transcripts, sent 350,000 telegrams, and issued thousands of news releases.[2] The organization was among the most powerful of its kind and it, too, was quietly but effectively opposing the re-election of Lyndon Johnson.

Enduring political opposition from well-financed, tax-exempt organizations infuriated Johnson. He knew this growing trend was of concern to other members of Congress, as well. Already there had been a House Special Committee to Investigate Tax-Exempt Foundations but it was winding down and Johnson wasn’t satisfied with its conclusion that there was little to be done about the influence of tax-exempt organizations in politics. He decided to investigate the issue on his own. As he told a friend, “I myself am wondering whether contributions to an organization so actively engaged in politics can be classed as a legitimate corporate expense and I am having this question explored by experts.”[3]

What Johnson learned was that a 1934 amendment to the statutes which governed tax-exempt organizations originally included the words, “and no substantial part of the activities of which is participation in partisan politics or in carrying on propaganda, or otherwise attempting to influence legislation.” When the bill was passed, though, the words, “participation in partisan politics” were stricken.[4] Clearly, the earlier Congress had taken the teeth out of the law. Thus the political troubles the junior senator from Texas was having with Facts Forum and CCG.

Johnson decided to act. On July 2, 1954, the House Special Committee to Investigate Tax-Exempt Foundations ended its deliberations. That same day, Lyndon Johnson rose on the floor of the Senate and offered his amendment to the Internal Revenue Service Code pertaining to political activities by 501(c)(3) organizations. The entire affair was over in a matter of seconds. In fact, the complete transcript of what occurred is but a few paragraphs long in the Congressional Record.

Mr. JOHNSON of Texas: Mr. President, I have an amendment at the desk, which I should like to have stated.

The PRESIDING OFFICER: The Secretary will state the amendment.

The CHIEF CLERK: On page 117 of the House bill, in section 501(c)(3), it is proposed to strike out “individuals, and” and insert “individual,” and strike out “influence legislation.” And insert “influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.”

Mr. JOHNSON of Texas: Mr. President, this amendment seeks to extend the provisions of section 501 of the House bill, denying tax-exempt status to not only those people who influence legislation but also to those who intervene in any political campaign on behalf of any candidate for any public office. I have discussed the matter with the chairman of the committee, the minority ranking member of the committee, and several other members of the committee, and I understand that the amendment is acceptable to them. I hope the chairman will take it to conference, and that it will be included in the final bill which Congress passes.[5]

That was it. The Republican majority accepted the amendment on unanimous consent. There were no hearings and no debate. Within moments the historic change was made. The next day, the front page of the Washington Post described the amendment broadly as one that “would withdraw tax-free status from any foundations or other organizations that attempt to ‘influence legislation’ or dabble in politics in behalf of any candidate for public office.”[6]

Johnson could hardly have comprehended the long-term impact of his amendment. He had intended to restrict tax-exempt foundations from mixing in politics largely to prevent opposition to his agenda by well-funded conservatives. He does not seem to have had religion particularly in view. It doesn’t matter. Johnson’s amendment to the IRS code pertaining to 501(c) (3) organizations has meant that every tax-exempt church and ministry in America is kept from endorsing candidates or specific legislation if it would keep its tax-exempt status.

The American founding fathers would have found it odd indeed to restrict religion from informing politics. Throughout the American colonial experience, politics rested on a foundation of faith. An election could not be held without the clergymen of a village or township preaching “Election Day” sermons to assure that all citizens thought religiously about their vote. If the militia gathered, a “Martial Sermon” was preached by one or all of the ministers in a town. City councils never met, Congresses never sat and even jails were seldom opened without sermons and prayers. The American colonists did not wish to create a government uninformed and untempered by religion.  The idea of insisting that churches limit themselves to matters of faith without allowing them to speak to matters of government would have been thought foolish if not impossible.

There are many who hold this same view today, and in the 2016 general election for the presidency, Donald Trump is their champion.

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[1] Robert A. Caro, Master of the Senate: The Years of Lyndon Johnson (New York: Alfred A. Knopf, 2002), p. 546.

[2] James D. Davidson, Why Churches Cannot Endorse or Oppose Political Candidates, 40 Rev. of Religious Research 16 (1998); note 37, at 21.

[3] Letter from Lyndon Johnson to J.R. Parten, June 3, 1954, LBJ Library Dougherty, Dudley June 1954 File

[4] For a description of the historical background to the 1934 amendment see Wilfred R. Caron & Deirdre Dessingue, IRC § 501(c)(3): Practical and Constitutional Implications of ‘Political’ Activity Resolutions, 2 J.L. & Pol. 169, 185–87 (1985).

[5]100 Cong. Rec. 9604 (1954)

[6] Robert C. Albright, Senate Votes Eisenhower Tax Revision Bill, 63 to 9, Wash. Post & Times Herald, July 3, 1954, at 1, col. 1.